STATE OF MINNESOTA IN COURT OF APPEALS A25-0527
State of Minnesota, Respondent,
vs.
Todd Jeremy Thompson, Appellant.
Filed February 2, 2026 Reversed Connolly, Judge Concurring specially, Wheelock, Judge
Mahnomen County District Court File No. 44-CR-24-293
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Jason M. Hastings, Mahnomen County Attorney, Mahnomen, Minnesota (for respondent)
Claire Nicole Glenn, Climate Defense Project, Minneapolis, Minnesota (for appellant)
Frank Bibeau, 1855 Treaty Authority, Grand Rapids, Minnesota (for amicus curiae 1855 Treaty Authority)
Considered and decided by Wheelock, Presiding Judge; Connolly, Judge; and Bond,
Judge.
SYLLABUS
Minnesota Statutes section 152.0263, subdivision 1(1) (Supp. 2023), is a
civil/regulatory statute, which the State of Minnesota lacks jurisdiction to enforce against
an enrolled member of the White Earth Band of Ojibwe for the possession of cannabis
flower occurring within the territorial boundaries of the White Earth Reservation. OPINION
CONNOLLY, Judge
Appellant challenges the denial of his motion to dismiss a charge of cannabis
possession in the first degree, arguing that the statute criminalizing his possession of
cannabis flower is civil/regulatory in nature under Public Law 280 and is therefore not
enforceable against appellant as an enrolled member of the White Earth Band of Ojibwe.
Appellant also argues that cannabis possession is a sovereign right reserved in the 1855
Treaty between the Ojibwe and the United States, which additionally bars his prosecution.
Because respondent State of Minnesota has adopted legislation decriminalizing the
possession of cannabis flower by adults below certain quantities statewide and has
authorized Tribal compacts for the regulation of cannabis by Minnesota’s Tribal
governments, we conclude that cannabis-flower possession is a civil/regulatory matter,
which the state lacks jurisdiction to enforce against an enrolled member of the White Earth
Band of Ojibwe for possession occurring on his own reservation. Consequently, we reverse
the decision of the district court.
FACTS
Appellant Todd Jeremy Thompson is an enrolled member of the White Earth Band
of Ojibwe who owns and operates Asema Tobacco & Pipe Shop, LLC (the shop), on the
White Earth Reservation in the City of Mahnomen. The shop is licensed as a tobacco
distributor/wholesaler under the White Earth Reservation Tax Code but is not licensed to
sell cannabis.
2 On August 2, 2023, law enforcement executed a search warrant at the shop and
located 3,405 grams (or approximately 7.5 pounds) of cannabis flower. The state charged
appellant in April 2024, with one count of cannabis possession in the first-degree, in
violation of Minnesota Statutes section 152.0263, subdivision 1(1). Appellant moved to
dismiss the complaint, arguing that the state lacks jurisdiction to prosecute him under the
statute because, given the passage of the Minnesota Adult Use Cannabis Act, the statute
was civil/regulatory in nature under Public Law 280. Additionally, appellant argued that
the state lacks jurisdiction because cannabis possession is a sovereign right reserved in the
1855 Treaty between the Ojibwe and the United States.
The district court denied appellant’s motion. The district court relied on two prior
decisions by this court, State v. St. Clair, 560 N.W.2d 732, 734-35 (Minn. App. 1997), and
State v. LaRose, 673 N.W.2d 157, 163-64 (Minn. App. 2003), rev. granted (Minn. Feb. 25,
2004) and ord. granting rev. vacated (Minn. Aug. 17, 2004), which each concluded that
the possession of cannabis on reservation land was a criminal offense over which the state
had enforcement jurisdiction under Public Law 280. The district court cited LaRose to
support the proposition that Minnesota has a “heightened public policy” against the
possession and use of illegal drugs, including cannabis, and that the possession of cannabis
violates the state’s “public criminal policy.” See 673 N.W.2d at 164. As such, the district
court determined that Minnesota Statutes section 152.0263 was criminal/prohibitory in
nature, and that the state had enforcement jurisdiction under Public Law 280. The district
court also rejected Thompson’s treaty argument.
3 Appellant sought discretionary review of the district court’s order by this court
pursuant to Minnesota Rule of Criminal Procedure 28.02, subdivision 3. We granted
discretionary review.
ISSUES
I. Did the district court err in determining that the statute criminalizing appellant’s cannabis-flower possession is a criminal/prohibitory law enforceable by the state under Public Law 280?
II. Did appellant satisfy his burden to establish that cannabis possession is a right retained in the 1855 Treaty with the United States, which bars his prosecution as an enrolled member of the White Earth Band of Ojibwe?
ANALYSIS
Whether the state has jurisdiction to prosecute a tribal member charged with an
offense committed within the territorial boundaries of their reservation is a question of
federal law which we review de novo. State v. Busse, 644 N.W.2d 79, 82 (Minn. 2002).
The interpretation of a treaty is also a question of law that we review de novo. Richard v.
United States, 677 F.3d 1141, 1144-45 (Fed. Cir. 2012).
I. The district court erred in determining that the statute criminalizing appellant’s cannabis-flower possession is a criminal/prohibitory law that the state is permitted to enforce under Public Law 280.
The United States Supreme Court has “consistently recognized that Indian tribes
retain attributes of sovereignty over both their members and their territory.” California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (quotation omitted). “This
sovereignty is ‘dependent on, and subordinate to, only the Federal Government, not the
States.’” State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997) (quoting Cabazon, 480 U.S.
4 at 207). “However, it is established that state laws may be applied to tribal Indians on their
reservations if Congress has expressly so provided.” Id.
“In Public Law 280, Congress granted Minnesota broad criminal and limited civil
jurisdiction over all Indian country within the state, with the exception of Red Lake
Reservation.” Id. (footnote omitted). Section 2 of Public Law 280 authorizes Minnesota
to exercise jurisdiction over criminal matters, and section 4 authorizes Minnesota to
exercise jurisdiction over civil causes of action between private parties. See 18 U.S.C.
§ 1162(a) (1994) (codifying Pub. L. No. 83-280, § 2); see also 28 U.S.C. § 1360 (1994)
(codifying Pub. L. No. 83-280, § 4). Section 4, however, does not grant the state general
civil/regulatory authority. Stone, 572 N.W.2d at 729.
“Accordingly, when a State seeks to enforce a law within an Indian reservation under the authority of Pub. L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation under [section] 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.”
Cabazon, 480 U.S. at 208.
To determine whether a state law is criminal or civil for purposes of determining its
enforceability under Public Law 280, the Supreme Court in Cabazon adopted the following
test:
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy.
5 Id. at 209. The Court noted, however, that the distinction between civil/regulatory and
criminal/prohibitory is not a bright-line rule, and that “[t]he applicable state laws governing
an activity must be examined in detail before they can be characterized as regulatory or
prohibitory.” Id. at 210, 211 n.10.
The Minnesota Supreme Court in Stone created a two-step approach for application
of the Cabazon test. Stone, 572 N.W.2d at 730.
The first step is to determine the focus of the Cabazon analysis. The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct.
Id.
After identifying the conduct on which to focus the analysis, the second step is to
apply the Cabazon standard to determine if the law is criminal/prohibitory or
civil/regulatory. Id.
If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory. If the conduct is generally prohibited, the law is criminal/prohibitory. In making this distinction in close cases, we are aided by Cabazon’s “shorthand public policy test,” which provides that conduct is criminal if it violates the state’s public policy.
Id. As “all laws implicate some public policy,” the Minnesota Supreme Court interpreted
“public policy,” as used in Cabazon, to mean “public criminal policy.” Id. “Public
criminal policy goes beyond merely promoting the public welfare. It seeks to protect
society from serious breaches in the social fabric which threaten grave harm to persons or
property.” Id.
6 A. The proper focus of the Cabazon analysis is the broad conduct of cannabis-flower possession and not the narrow conduct of possessing an unlawful quantity of cannabis.
As discussed, the first step of our analysis is to determine whether the broad or
narrow conduct at issue is to be the focus of the Cabazon test. Id. Here, appellant is
charged with possession of cannabis in the first degree, in violation of Minnesota Statutes
section 152.0263, subdivision 1(1), which prohibits the unlawful possession of “more than
two pounds but not more than ten kilograms of cannabis flower.” Accordingly, the broad
conduct that is addressed by this statute is the possession of cannabis flower, whereas the
narrow conduct is the possession of cannabis flower in an amount greater than two pounds
but less than ten kilograms. See Minn. Stat. § 152.0263, subd. 1(1). As Stone directs, the
broad conduct is to be the focus of the Cabazon analysis unless “substantially different or
heightened public policy concerns” are implicated by the narrow conduct. 572 N.W.2d at
730.
On August 1, 2023, legislation became effective in Minnesota that decriminalized
the possession by adults of cannabis in certain forms and below certain quantities. 2023
Minn. Laws ch. 63, art. 1, § 9, at 2707-10 (codified at Minn. Stat. § 342.09 (2024)).
Relevant here, the legislation specifically authorizes an adult 21 years of age or older to
possess up to two pounds of cannabis flower in their private residence or up to two ounces
of cannabis flower in a public place. Minn. Stat. § 342.09, subd. 1(2), (3). The possession
of cannabis flower in quantities above these thresholds is criminalized by offenses of
increasing severity depending on the amount by which they are exceeded. See Minn. Stat.
§§ 152.0263, subds. 1-4 (criminalizing the possession of cannabis flower in quantities
7 greater than two ounces and not more than ten kilograms), .023, subd. 2(a)(5)(i) (2024)
(criminalizing possession of more than ten kilograms of cannabis flower).
Our first question, therefore, is whether the possession of between two pounds and
ten kilograms of cannabis flower—the behavior criminalized by the charged offense—
implicates “substantially different or heightened public policy concerns” than those
attendant to the lawful possession of up to two pounds of cannabis flower in one’s own
residence. See Stone, 572 N.W.2d at 730. We conclude that it does not.
Appellant argues Minnesota’s 2023 cannabis legislation reflects the state’s
understanding that “possession of cannabis is neither an inherently dangerous activity nor
one of particular public policy concern requiring categorical prohibition or
criminalization.” Indeed, if the possession of up to two pounds of cannabis flower by an
adult in their own home is expressly permitted by statute, it is difficult to discern how
merely possessing more than the authorized amount would constitute a “serious breach[]
in the social fabric which threaten[s] grave harm to persons or property” such that our
analysis should be restricted to the narrow, criminalized conduct rather than the broad
conduct of possessing cannabis flower. Stone, 572 N.W.2d at 731. And the state does not
present a compelling argument otherwise.
At oral argument, the state asserted that heightened public-policy concerns are
implicated by the specific facts of appellant’s case, which indicate that he was not
possessing cannabis flower in his home or on his person but in the shop with the intention
to sell it unlawfully. This argument is unpersuasive, however, because the possession of
cannabis with the intent to sell it constitutes a distinct crime from the possession of
8 cannabis alone and is separately criminalized in statute. See Minn. Stat. §§ 152.0264
(defining cannabis sale crimes); .01, subd. 15(a) (defining “sell” for purposes of chapter
152 as including possession with the intent to sell) (2024). Of importance here is that
appellant was not charged with a sale crime under section 152.0264, but rather with a
possession offense under section 152.0263, subdivision 1. Had the state chosen to charge
appellant with a sale crime on the theory that he intended to sell the cannabis flower he was
found to be in possession of, then any policy distinctions between the possession and sale
of cannabis would become relevant and perhaps compel a different result. But because the
state charged appellant with only the possession of an unlawful amount of cannabis flower,
the state’s subjective belief as to the purpose of his possession in this instance does not
alter the nature of the specific conduct criminalized by the charged statute, which is
possession.
Because we cannot identify any “substantially different or heightened public policy
concerns” that would arise solely on the basis of the quantity of cannabis flower possessed,
we conclude that the proper focus of the Cabazon analysis is on the broad conduct of
cannabis-flower possession and not on the narrow conduct of possessing an unlawful
quantity of cannabis flower.
B. Because possession of cannabis flower is generally permitted in Minnesota, the statute is civil/regulatory and thus unenforceable against appellant.
Having determined that the broad conduct of possessing cannabis flower is the
proper focus of the Cabazon test, we turn to the question of whether the statute under which
appellant is charged is criminal/prohibitory or civil/regulatory in nature. See Cabazon, 480
9 U.S. at 209-10; see also Stone, 572 N.W.2d at 730. In doing so, we must analyze whether
the intent of the law is to generally permit the conduct subject to regulation, or if it is
intended to generally prohibit the conduct. See Stone, 572 N.W.2d at 729.
Historically, the possession of cannabis or cannabis products was not permitted in
any part of the state and, consequently, the laws proscribing such possession were deemed
to be enforceable under Public Law 280’s grant of criminal jurisdiction. See LaRose, 673
N.W.2d at 164 (“The possession of marijuana, like other illegal drugs in Minnesota, is
criminal/prohibitory, not civil/regulatory.”). As noted, however, the statutory framework
on which this conclusion was based was significantly altered in 2023 by legislation which
expressly authorized the possession of certain quantities and types of cannabis products by
adults. See 2023 Minn. Laws ch. 63, art. 1, § 9, at 2707-10. And enforcement of the
statute’s quantity limitations (for amounts up to ten kilograms in the case of cannabis
flower)1 was separately provided for in concurrently enacted legislation that distinguishes
cannabis-possession crimes from Minnesota’s general controlled-substance-crime
statutory scheme. See Minn. Stat. § 152.0263.
In addition, 2023 legislation acknowledged “the sovereign right of Minnesota Tribal
governments to regulate the cannabis industry and address other matters of cannabis
regulation related to the internal affairs of Minnesota Tribal governments or otherwise
within their jurisdiction.” 2023 Minn. Laws ch. 63, art. 6, § 2, at 2863 (codified at Minn.
1 The possession of more than ten kilograms of cannabis flower remains criminalized by Minn. Stat. §§ 152.021-.023 (2024), which defines first-, second-, and third-degree controlled substance crimes.
10 Stat. § 3.9228, subd. 2(a) (2024)). It was thus clearly also within the contemplation of the
legislature that Minnesota’s Tribes would retain their regulatory sovereignty concerning
cannabis possession and sale. Indeed, the White Earth Band subsequently adopted the
White Earth Band of the Minnesota Chippwea Tribe’s Adult-Use Cannabis Code, which
created a regulatory framework for the possession and sale of cannabis on the White Earth
Reservation. Among the stated purposes of this code is to “[e]nsure that members of the
White Earth Band, members of other federally recognized tribes, Minnesota residents, and
other persons have the ability to lawfully obtain, purchase, receive, possess, and use Adult-
use Cannabis” in accordance with its terms. See White Earth Band of the Minnesota
Chippewa Tribe Adult-Use Cannabis Code § 1.02(1)(c).
Accordingly, given the state’s affirmative legalization of possession by adults of
certain quantities and forms of cannabis, the state’s authorization of tribal cannabis
compacts to permit independent regulation of the cannabis industry on Tribal land, and the
White Earth Band’s implementation of its own cannabis-related code, we are satisfied that
the intention of the legislature was to generally permit the possession of cannabis flower
by adults, subject to regulation, and that LaRose and St. Clair have been superseded by
statute as to the possession of those cannabis products specifically authorized by section
342.09, subdivision 1. Moreover, because the possession of cannabis flower alone “clearly
does not violate the public criminal policy of the state,” this is not a close case and “there
is no need to apply the shorthand public policy test.” Stone, 572 N.W.2d at 731.
It bears noting as well that, although the possession of cannabis flower is regulated
by means of criminal penalties, this is not dispositive to our analysis. See Cabazon, 480
11 U.S. at 202-03 (“That an otherwise regulatory law is enforceable (as here) by criminal as
well as civil means does not necessarily convert it into a criminal law within Pub. L. 280’s
meaning.”). Here, notwithstanding the manner in which the conduct is regulated, we
cannot ignore the clear language of the legislation that specifically permits the possession
of cannabis flower by adults and that allows Minnesota’s Tribes to implement their own
regulatory structures concerning cannabis possession, and we are thus compelled to regard
these criminal provisions as regulatory rather than punitive.
We therefore hold that, because Minnesota Statutes section 152.0263, subdivision
1(1), is civil/regulatory in nature, the State of Minnesota lacks jurisdiction under Public
Law 280 to enforce it against a member of the White Earth Band for conduct occurring
within the territorial boundaries of the White Earth Reservation. Our holding is consistent
with the framing of the issue and decision by our supreme court in Stone, as well as the
presentation of the issue by the parties. See Stone, 572 N.W.2d at 731 (holding that the
laws involved in the case were civil/regulatory and therefore “the state lacks jurisdiction
under Public Law 280 to enforce them against members of the White Earth Band of
Chippewa for conduct occurring within the boundaries of their reservation”).
II. We decline to reach the issue of whether cannabis possession is a right protected by the 1855 Treaty between the Ojibwe and the United States.
Because we conclude that the state lacks jurisdiction to prosecute appellant for a
violation of Minnesota Statutes section 152.0263, subdivision 1(1), pursuant to Public Law
280, we need not address the question of whether appellant’s possession of cannabis flower
is a right separately protected by treaty.
12 DECISION
The criminalization of the possession of cannabis flower under Minnesota Statutes
section 152.0263, subdivision 1(1) is a civil/regulatory statute, which the state lacks
jurisdiction to enforce against an enrolled member of the White Earth Band of Ojibwe for
possession occurring on the White Earth Reservation. As such, the district court’s order
denying appellant’s motion to dismiss the charge against him is reversed.
Reversed.
13 WHEELOCK, Judge (concurring)
Although I concur in much of the reasoning and the result reached by the majority,
I write separately for two primary reasons. First, I query whether it is time for the supreme
court to reconsider its decision in State v. Stone, 572 N.W.2d 725 (Minn. 1997). I would
conclude that Stone creates an analytical framework that is in tension with the United States
Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987), as demonstrated by Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929 (2022).
Second, I would not limit today’s holding to White Earth tribal members and the White
Earth Tribe’s reservation. I would instead frame today’s holding to apply to all of the
federally recognized tribes within the State of Minnesota that are subject to Public Law
280.
I begin with a discussion of tribal sovereignty—a discussion that is necessary before
a question of state jurisdiction over tribes can be resolved. I then provide an overview of
the comprehensive legislation passed in 2023 that established new state policy on cannabis
use, possession, and sale, and I identify where I differ from the majority in how to apply
the Cabazon test to the state statute under which Thompson was charged. Finally, I address
concerns with Stone’s articulation of the Cabazon test and with the appearance of a
limitation in the majority opinion of today’s holding to a specific tribe and reservation.
Tribal Sovereignty and Public Law 280
An understanding of the history of the relationship between tribes and the United
States since contact and the formation of the United States is critical to fully consider
questions of Indian law because that history has shaped federal policy and laws with respect
CS-1 to tribes and has alternated between widely different views of tribes throughout that history.
See Cohen’s Handbook of Federal Indian Law § 1.04[3], at 5 (Nell Jessup Newton & Kevin
K. Washburn, eds., 2024) [hereinafter Cohen’s Handbook] (explaining that “[t]he history
of federal Indian law is crucial to understanding the field” because, although “[t]he United
States has always recognized tribal sovereignty,” it “has pursued policies over time that
appear to contradict one another,” a “vacillation [that] has led to conflicting lines of
precedent and to limitations on tribal sovereignty resulting from past intrusions” that
include repudiated policies).2 Thus, any question of the jurisdiction of Indian tribes, the
federal government, and the states must be resolved in light of that foundation.
Indian tribes are “separate sovereigns” that preexisted the United States
Constitution. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); United States v.
Wheeler, 435 U.S. 313, 322-30 (1978) (stating that a tribe’s power to prosecute its members
for crimes derives from inherent sovereignty that is not delegated by the federal
government). Tribal sovereignty is neither dependent on nor subordinate to state
governments. Stone, 572 N.W.2d at 728 (citing Cabazon, 480 U.S. at 207). Because Indian
tribes “remain separate sovereigns,” they “retain their historic sovereign authority” except
when abrogated by Congress. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788
(2014) (quotations omitted). State governments may assert jurisdiction and enforce their
laws over tribal members on their reservations only when and to the extent Congress has
2 More than 570 tribes are federally recognized by the United States, see Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 99,899 (Dec. 11, 2024), each with a distinct history, language, and cultural, societal, and governmental practices. CS-2 so provided. Cabazon, 480 U.S. at 207. States do not have the authority to abrogate tribal
sovereignty. McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 168 (1973) (“[T]he
policy of leaving Indians free from state jurisdiction and control is deeply rooted in the
Nation’s history.” (quotation omitted)).
It is crucial that courts and legal practitioners understand that tribes have inherent
sovereignty that existed before contact with European explorers—this includes rights,
powers, and authority that have not been relinquished or abrogated—and that tribal rights
are not rights given to the tribes by federal or state governments. See Cohen’s Handbook,
supra, § 18.02[1][a], at 1125 (explaining that “tribal nations are ‘distinct, independent
political communities, retaining their original natural rights, as the undisputed possessors
of the soil, from time immemorial’” (quoting Worcester v. Georgia, 31 U.S. 515, 559
(1832)). In the first chapter on foundational principles in the field of federal Indian law,
Cohen’s Handbook observes the following:
Hundreds of Indian tribes governed the entire land mass of the of the present-day United States prior to its creation. The United States asserted authority over these sovereign nations through a colonial process that was partly negotiated and partly imposed. Federal Indian law mediates the resulting intergovernmental relations among the Indian nations, the United States, and the states of the Union.
Cohen’s Handbook, supra, § 1.01, at 1 (footnote omitted).
Applying this lens, it becomes clear that, to understand the extent of the sovereign
rights tribes retain and the extent to which Congress has authorized states to assert
CS-3 jurisdiction over tribal members on their reservations, we must examine relevant acts of
Congress and, at times, relevant treaties.3
In 1953, Congress passed Public Law 280, granting Minnesota and five other states
broad criminal and limited civil jurisdiction over Indian country within each state. Pub. L.
No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162 (2018)). Of the
11 federally recognized tribes located within Minnesota, nine are currently subject to
Public Law 280.4 Under section 2 of Public Law 280, Congress authorized Minnesota to
3 We do not reach the merits of Thompson’s arguments based on his reserved treaty rights under the Treaty of Washington, 1855; however, when considering legal issues involving treaties between the United States and Indian tribes, accuracy and an understanding of the specific historical context of the treaty at issue are again critical. Further, I note here that the state did not address Thompson’s treaty-rights argument in its principal brief, and at oral argument, counsel for the state said, “If the court were to rule that he has a treaty right, . . . we would defer to the court with that.” The district court did not find that Thompson had a reserved treaty right to possess cannabis—a plant medicine; however, in its discussion of Thompson’s argument, it misstated the law when it said that any treaty rights belong only to the tribe as a whole. “It is well settled . . . that an individual Indian may assert usufructuary rights in a criminal prosecution.” United States v. Brown, 777 F.3d 1025, 1032 (8th Cir. 2015); see also United States v. Dion, 476 U.S. 734, 738 n.4 (1986) (explaining that “treaty rights can be asserted by . . . an individual member of the Tribe”); United States v. Winans, 198 U.S. 371, 381 (1905) (explaining that “negotiations were with the tribe” but treaties “reserved rights . . . to every individual Indian, as though named therein”). Although treaty rights are held communally by a tribe, “[e]ach tribal member has the right to exercise the reserved rights, subject to tribal regulation, and to sue to enforce those rights.” Cohen’s Handbook, supra, § 20.03[1], at 1292 (emphasis added) (footnote omitted) (citing Sohappy v. Smith, 302 F. Supp. 899, 904 (D. Or. 1969)); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 195-200 (1999) (holding that “[t]he entire 1855 Treaty, in fact, is devoid of any language expressly mentioning— much less abrogating—usufructuary rights”—it was merely a land-purchase treaty). 4 There are 11 federally recognized Indian tribes within the state. See Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 99,899 (listing federally recognized tribes). However, Public Law 280 expressly excepted the Red Lake Reservation. 18 U.S.C. § 1162(a). And in 1973, Minnesota approved the retrocession of state criminal jurisdiction on the Bois Forte CS-4 exercise jurisdiction over certain criminal matters on Indian reservations.5 See 18 U.S.C.
§ 1162(a) (codifying Pub. L. No. 83-280, § 2). And under section 4 of Public Law 280,
Congress authorized Minnesota to exercise limited jurisdiction over civil causes of action
between private parties arising on Indian reservations, but it did not grant the state general
civil regulatory authority over tribal members on their reservations. Stone, 572 N.W.2d at
729 (citing Bryan v. Itasca County, 426 U.S. 373, 384-88 (1976)); see also 28 U.S.C.
§ 1360 (2018) (codifying Pub. L. No. 83-280, § 4).
In 1987, the Supreme Court in Cabazon established a test for courts to apply to
determine whether a state may enforce its laws in Indian country, distinguishing between
Reservation. See 1973 Minn. Laws ch. 625, § 3, at 1500, 1501 (retroceding state criminal jurisdiction over the Bois Forte Reservation to the federal government); see also Acceptance of Retrocession of Jurisdiction, 40 Fed. Reg. 4026 (Jan. 15, 1975) (accepting retrocession of state jurisdiction). 5 Over 50 years later, Congress passed the Tribal Law and Order Act of 2010 (TLOA), which created a mechanism for tribal governments with reservations in Public Law 280 states to request either that the federal government have concurrent criminal jurisdiction with the state or resume federal criminal jurisdiction without the state also having criminal jurisdiction. Pub. L. No. 111-211, § 221(a)(2), 124 Stat. 2261, 2271 (2010). In Minnesota, the White Earth Band was granted concurrent jurisdiction, which took effect on June 1, 2013, Press Release, U.S. Dep’t of Just., United States to Accept Concurrent Jurisdiction Over White Earth Reservation in Minnesota (Mar. 15, 2013), https://www.justice.gov/archives/opa/pr/united-states-accept-concurrent-jurisdiction- over-white-earth-reservation-minnesota [https://perma.cc/C4LJ-PPM8], and the Mille Lacs Band of Ojibwe was granted concurrent jurisdiction, which took effect on January 1, 2017, United States Assumption of Concurrent Federal Criminal Jurisdiction, 81 Fed. Reg. 4335, 4335-36 (Jan. 26, 2016). When a state has concurrent jurisdiction with the federal government, the state’s criminal jurisdiction is not altered. Tribal members are still subject to state and tribal criminal laws. The difference is that members of federally recognized tribes may be subject to federal prosecution for certain crimes in addition to any state or tribal prosecution that occurs. See 25 U.S.C § 1321(a) (2018) (assumption by state of criminal jurisdiction); 28 C.F.R. § 50.25 (2024) (assumption of concurrent federal criminal jurisdiction). CS-5 laws that are “civil/regulatory” and laws that are “criminal/prohibitory.” 6 Cabazon,
480 U.S. at 209. Laws that are civil/regulatory may not be enforced by states against tribal
members on their reservations, while laws that are criminal/prohibitory may be enforced
by states against tribal members on their reservations. Id. The Supreme Court further
explained that the distinction between civil/regulatory and criminal/prohibitory is not
subject to a bright-line rule and that “[t]he applicable state laws governing an activity must
be examined in detail before they can be characterized as regulatory or prohibitory.” Id. at
210, 211 n.10. It also stated, “The shorthand test is whether the conduct at issue violates
the State’s public policy.” Id. at 209.
6 The complex jurisdictional landscape that exists at the intersection of federal, tribal, and state law is often referred to as a jurisdictional maze because the determination of which sovereign or sovereigns have jurisdiction over an incident or set of circumstances is dependent upon the tribal status of the people involved (whether someone is a tribal member or can be identified as an “Indian”), the status of the land on which it occurred, and the nature of the issues that have arisen. See State v. Roy, 761 N.W.2d 883, 891 (Minn. App. 2009) (“[T]he regulation of nonmember Indians warrants different consideration than does regulation of member Indians . . . .” (quotation omitted)), rev. denied (Minn. May 19, 2009); United States v. John, 437 U.S. 634, 647-49 (1978) (looking first to the “situs of the alleged offense” and whether the site constituted Indian country to answer the question of jurisdiction). Thus, to properly navigate the jurisdictional maze, we must be precise in how we describe the facts of any case that involves tribes, tribal members, and tribal lands. Here, it is relevant that Thompson is an enrolled tribal member and that the incident occurred on the White Earth reservation, which is part of “Indian country.” See 18 U.S.C. § 1151 (2018) (defining the term “Indian country”); see also John, 437 U.S. 634 at 648 (explaining that “Indian country” is defined broadly to encompass the three distinct categories of land in U.S.C. § 1151); Cabazon, 480 U.S at 207 n.5 (instructing that the term “Indian country” applies to questions of criminal and civil jurisdiction); Negonsott v. Samuels, 507 U.S. 99, 102 (1993) (“Criminal jurisdiction over offenses committed in Indian country, is governed by a complex patchwork of federal, state, and tribal law.” (quotations omitted)). CS-6 Ten years later, in Stone, the Minnesota Supreme Court created a two-step approach
for applying the Cabazon test. Stone, 572 N.W.2d at 730. In the first step, a court must
determine whether the focus of the Cabazon test is “broad conduct” or “narrow conduct.”
Id. “The broad conduct will be the focus of the test unless the narrow conduct presents
substantially different or heightened public policy concerns. If this is the case, the narrow
conduct must be analyzed apart from the broad conduct.” Id. In the second step, the court
applies the Cabazon test to determine if the law is criminal/prohibitory or civil/regulatory.
With this understanding of the legal landscape created by Public Law 280, Cabazon,
and Stone, I turn to recent state legislation regarding cannabis in Minnesota.
The 2023 Cannabis Law
In 2023, Minnesota passed the Cannabis Finance and Policy Law (the 2023 cannabis
law), establishing a new comprehensive state regulatory framework. 2023 Minn. Laws
ch. 63, art. 1, at 2685-798 (codified as amended at Minn. Stat. §§ 342.01-.82 (2024)). The
2023 cannabis law legalized recreational adult use and possession of cannabis, including
making it legal to possess up to two ounces of cannabis flower in public and up to two
pounds at home. See Minn. Stat. § 342.09, subd. 1(a)(2)-(3). Private individuals may grow
and gift their own cannabis. Id., subds. 1(a)(6), 2. And commercial cannabis sales
managed by the state and tribal governments are allowed, subject to the regulatory and
licensing frameworks established in the 2023 cannabis law. See, e.g., Minn. Stat. § 342.02
(establishing the office of cannabis management and tasking this office with the
CS-7 development and implementation of operational and regulatory systems to oversee the
cannabis industry).
The 2023 cannabis law explicitly addressed Indian tribes’ sovereign authority in the
provision that governs tribal-state cannabis compacts:
The state of Minnesota acknowledges the sovereign right of Minnesota Tribal governments to regulate the cannabis industry and address other matters of cannabis regulation related to the internal affairs of Minnesota Tribal governments or otherwise within their jurisdiction, without regard to whether such Tribal government has entered a compact authorized by this section.
Minn. Stat. § 3.9228, subd. 2(a) (2024) (emphasis added). Tribes may voluntarily negotiate
compacts with the state. Id., subds. 2, 3 (2024). Thus, the legislature not only
acknowledged tribal sovereignty, but took steps to encourage tribes to exercise their
sovereign authority in the area of cannabis regulation.
The White Earth Band’s decision to exercise its inherent sovereignty and adopt its
code demonstrates that the state legislature’s intentions are coming to fruition; however,
the White Earth Band’s decision whether to adopt cannabis laws is irrelevant to the
determination of whether a state statute is civil/regulatory or criminal/prohibitory. As the
state legislature recognized, tribes have the sovereign right to regulate cannabis, and this
right is not abrogated merely because a tribe has not enacted a code. Pursuant to Cabazon
and Stone,7 it is the applicable state laws that must be examined in detail to determine
7 In the Stone opinion’s recitation of facts, the supreme court stated that, at the time of the offenses at issue in that case, White Earth did not have a “comprehensive” traffic code but that one was adopted shortly after the offenses occurred. 572 N.W.2d at 728. However, CS-8 whether Public Law 280 applies—not the tribe’s law. Cabazon, 480 U.S. at 211 n.10 (“The
applicable state laws governing an activity must be examined in detail before they can be
categorized as regulatory or prohibitory.” (emphasis added)). If anything, these provisions
of the 2023 cannabis law may provide insight into the legislature’s views of whether the
state’s cannabis laws are civil or criminal in nature. Thus, I disagree with the majority
opinion’s inclusion of the White Earth Band’s implementation of its own cannabis-related
code as relevant to our determination that the statute at issue is civil/regulatory.
Civil/Regulatory Nature of the 2023 Cannabis Law
Given this comprehensive and robust legislation and that the narrow conduct here—
possession of cannabis—does not present substantially different or heightened
public-policy concerns than the broad conduct of cannabis use, possession, and sale, and
applying the Cabazon test to the state statute at issue in this case, I agree with the majority
opinion that the statute is civil/regulatory.
I disagree, however, with any suggestion that a determination of whether the statute
is civil/regulatory or criminal/prohibitory would be different if a different type of offense
had been charged, such as possession with intent to sell. At oral argument, the state
asserted that heightened public-policy concerns are implicated by specific facts of
appellant’s case that indicate he was possessing cannabis flower in his shop with the
intention to sell it unlawfully. But counsel for the state also said he believed that, if
Thompson had a license of some kind for the cannabis, the statute governing his conduct
that fact was not essential to the legal reasoning or decision in Stone; nor does it alter what may be considered when applying the United States Supreme Court’s Cabazon test. CS-9 would be civil/regulatory. Thus, even the state’s characterization of Thompson’s conduct
is about compliance with a regulation—sale without a license as opposed to sale with a
license—and there is no “serious breach[] in the social fabric which threaten[s] grave harm
to persons or property” that would require analyzing a sale charge under the
narrow-conduct prong of Stone. 572 N.W.2d at 730.
Stone’s Articulation of the Cabazon Test
As an intermediate appellate court, we are tasked with correcting errors and bound
by precedent. Lake George Park, L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union,
576 N.W.2d 463, 466 (Minn. App. 1998) (“This court, as an error correcting court, is
without authority to change the law.”), rev. denied (Minn. June 17, 1998). I write
separately, in part, to question whether the supreme court should revisit Stone because it is
in tension with Cabazon. I am concerned, particularly in light of intervening United States
Supreme Court precedent, that the two-step process established in Stone does not align
with the straightforward inquiry Cabazon requires and instead encourages an end run
around the Cabazon test.
Stone and the two-part test it created are premised on the idea that the Supreme
Court “did not clearly state whether ‘the conduct at issue’ to be analyzed is the broad
conduct, such as gambling, or the narrow conduct, such as bingo.” Stone, 572 N.W.2d at
729. But revisiting this premise may reveal that it is at odds with the Supreme Court’s
analysis of the conduct at issue in Cabazon.
The Supreme Court in Cabazon did not analyze only the narrow conduct at issue in
that case—“high stakes, unregulated bingo”—which was prohibited under California penal
CS-10 code; rather, it analyzed the conduct at issue from a broad perspective—in the language of
its decision, the activity at issue—which, it determined, was gambling. 480 U.S. at 210-11
& n.10. Cabazon’s analysis of the conduct at issue was clear, both in how the Supreme
Court articulated it and in how it applied the test. Id. at 211 n.10 (“[T]he applicable state
laws governing an activity must be examined in detail before they can be characterized as
regulatory or prohibitory.” (emphasis added)). The Supreme Court reviewed the California
Government Code, which allowed the state to operate a state lottery, and observed that
California encouraged its citizens to participate. Id. at 210. It also reviewed the California
Business and Professions Code, which permitted horse-race betting, and then it reviewed
the penal code at issue, noting that certain games were prohibited and that games not
enumerated were permissible. Id. After concluding that California regulates rather than
prohibits gambling in general and bingo in particular, the Supreme Court appears to have
rejected the narrow-conduct test that the Minnesota Supreme Court later adopted in Stone.
The Supreme Court explained that focusing on the criminal law at hand—which
Stone characterized as the narrow conduct—was misguided because “the distinction
between § 2 and § 4 of [Public Law 280] could easily be avoided and total assimilation
permitted.”8 Id. at 211. Based on this reasoning, the Supreme Court rejected California’s
8 In elucidating the civil/regulatory-versus-criminal/prohibitory test, the Supreme Court recalled its decision in Bryan, 426 U.S. 373, in which it recognized a dichotomy between regulatory and prohibitory laws and rejected the notion that Public Law 280 granted states general civil regulatory power over Indian reservations. Cabazon, 480 U.S. at 208. Immediately before setting forth the holding in Cabazon, the Court described the careful balance it struck when recognizing that distinction, specifically explaining that “Congress’s primary concern in enacting Pub. L. 280 was combating lawlessness on reservations,” that Public Law 280 “plainly was not intended to effect total assimilation of CS-11 position that it should look at the narrow conduct of “high stakes, unregulated bingo” rather
than reviewing state laws governing gambling as a whole. Id.
Recently, the Supreme Court addressed the distinction between regulatory and
prohibitory laws in Ysleta Del Sur Pueblo, 142 S. Ct. 1929. In that case, the Ysleta del Sur
Pueblo, a federally recognized tribe with a reservation in Texas, engaged in gaming
activity—specifically, bingo—that violated state law but not federal law, and the state filed
a lawsuit seeking to enjoin the tribe from continuing its bingo operations. Ysleta, 142 S.
Ct. at 1934-37. The parties disagreed about the interpretation of a federal law,9 passed just
six months after the Supreme Court issued its decision in Cabazon, that also used a
regulatory-prohibitory distinction to prescribe the extent to which tribal gaming is allowed
on the Ysleta del Sur Pueblo’s reservation and its other lands. Ysleta, 142 S. Ct. at 1935-37.
The federal law, in part, expressly provided that “[a]ll gaming activities which are
prohibited by the laws of the State of Texas are hereby prohibited on the reservation and
on lands of the tribe” and also stated that “[n]othing in this section shall be construed as a
grant of civil or criminal regulatory jurisdiction to the State of Texas.” Id. at 1938. The
Supreme Court observed that “the most striking feature” about the statutory language “is
its dichotomy between prohibition and regulation” because “[t]he implication that
Indian tribes into mainstream American society,” and that “a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values.” Id. In my view, a proper application of the Cabazon test therefore acknowledges the balance the Supreme Court intentionally struck. 9 Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 (1987). CS-12 Congress drew from Cabazon and meant for us to apply its same prohibitory/regulatory
framework here seems almost impossible to ignore.” Id.
The Supreme Court then interpreted the terms “regulate” and “prohibit” and
concluded that the provision barring gambling that was “prohibited” by the state covered
only those forms of gambling that were outright banned by the state. Id. The Supreme
Court reasoned that to “prohibit something means to ‘forbid,’ ‘prevent,’ or ‘effectively
stop’ it, or ‘make [it] impossible,’” in contrast with “to regulate,” which “is usually
understood to mean to ‘fix the time, amount, degree, or rate’ of an activity ‘according to
rule[s],’” and that, as such, the two words frequently are ‘‘not synonymous.” Id. (first
quoting Webster’s Third New International Dictionary 1813, 1913 (1986); and then
quoting Black’s Law Dictionary 1212 (6th ed. 1990)). In doing so, the Court focused its
analysis on the broad conduct or activity that was the subject of the state statute. The Texas
laws at issue in Ysleta permitted some forms of bingo, subject to regulation, yet the State
of Texas argued they were prohibitory because deviations from the restrictions on time,
place, and manner were criminal violations. Id.10
10 The Court bolstered its statutory-interpretation analysis by addressing canons of interpretation and “contextual clues”:
Even if fair questions remain after a look at the ordinary meaning of the statutory terms before us, important contextual clues resolve them. Recall that Congress passed the Act just six months after this Court handed down Cabazon. In that decision, the Court interpreted Public Law 280 to mean that only ‘‘prohibitory’’ state gaming laws could be applied on the Indian lands in question, not state ‘‘regulatory’’ gaming laws. The Court then proceeded to hold that California bingo laws— laws materially identical to the Texas bingo laws before us CS-13 The Supreme Court rejected the state’s position, highlighting its reasoning in
Cabazon that “‘an otherwise regulatory law’ is not enforceable under Public Law 280
merely because a State labels it ‘criminal.’” Id. at 1935 (quoting Cabazon, 480 U.S. at
211). The Supreme Court concluded that the Texas statutes were civil/regulatory and the
state could not enforce them against the Tribe on its land. Id. at 1938.
Our supreme court did not have the benefit of the Supreme Court’s decision in Ysleta
when it decided Stone and has not had occasion to revisit Stone since Ysleta was decided.
And the intervening precedent of Ysleta is instructive as to the continued viability of
today—fell on the regulatory side of the ledger. Just like Texas today, California heavily regulated bingo, allowing it only in certain circumstances (usually for charity). Just like Texas, California criminalized violations of its rules. Still, because California permitted some forms of bingo, the Court concluded that meant California did not prohibit, but only regulated, the game.
For us, that clinches the case. This Court generally assumes that, when Congress enacts statutes, it is aware of this Court’s relevant precedents. And at the time Congress adopted the Restoration Act, Cabazon was not only a relevant precedent concerning Indian gaming; it was the precedent. In Cabazon, the Court drew a sharp line between the terms prohibitory and regulatory and held that state bingo laws very much like the ones now before us qualified as regulatory rather than prohibitory in nature. We do not see how we might fairly read the terms of the Restoration Act except in the same light. After all, “[w]hen the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court’s own processes to give the words the same meaning in the absence of specific direction to the contrary.”
Id. at 1940 (emphasis added) (citations omitted) (quoting Williams v. Taylor, 529 U.S. 420, 434 (2000)). CS-14 Stone’s analysis of Cabazon. Logically, if the distinction between state
criminal/prohibitory laws and state civil/regulatory laws could be properly ascertained
merely by looking at the narrow conduct or the fact that the specific statute being analyzed
is criminal, penal, or prohibitory, there would be no need for the Cabazon test. Ysleta
explains that circular reasoning results when the narrow conduct addressed by the statute
is the focus of the analysis:
No one questions that Texas ‘regulates’ bingo by fixing the time, place, and manner in which the game may be conducted. The State submits only that, in some sense, its laws also ‘prohibit’ bingo—when the game fails to comply with the State’s time, place, and manner regulations. But on that reading, the law’s dichotomy between prohibition and regulation collapses. Laws regulating gaming activities become laws prohibiting gaming activities.
Id. at 1939. Because the narrow conduct that is the subject of a state statute is prohibited
and thus presumably is against the public policy of the state, it is difficult to imagine a
scenario in which review of the narrow conduct will result in a conclusion that the state
statute is not criminal/prohibitory in nature. I believe that this is precisely the result the
Supreme Court was trying to avoid.
For these reasons, the narrow-conduct analysis articulated in Stone appears to be in
tension with the analysis that Cabazon requires. Given the clarity provided in Ysleta, it is
appropriate for our supreme court to revisit its decision in Stone.
Finally, I end where I began—convinced that today’s holding is not limited to the
White Earth Band and the White Earth Reservation. Based on an analysis under Cabazon,
the state statute prohibiting possession of cannabis over a specific amount is
CS-15 civil/regulatory in nature, and this distinction does not change depending on the tribe
involved. Indeed, we granted discretionary review because “a decision on the jurisdiction
of the state to enforce Minnesota’s cannabis-possession laws and on the extent of the rights
reserved under applicable treaties will have an immediate statewide impact on all Tribes in
Minnesota subject to Public Law 280 and on their members.” Because it would otherwise
be illogical and antithetical to judicial economy and our duty to deliver justice, I would
frame today’s holding more broadly. Such framing avoids forcing other tribes or their
members in Minnesota to relitigate this exact issue. It is not just possible, but likely, that
another member of a different tribe on a different reservation will be arrested,
notwithstanding that possession of cannabis is regulatory in nature and falls within the
Tribes’ regulatory authority. Our decision today applies in equal measure to all Indian
tribes in Minnesota that are subject to Public Law 280.
CS-16